Commonwealth v. Bermudez, 348 N.E.2d 802 (Mass. 1976). · Go Syfert
Commonwealth v. Bermudez, 348 N.E.2d 802 (Mass. 1976). Cases Citing This Book View Copy Cite
“a reasonable man can be expected to control the feelings aroused by an insult or an argument, but certain incidents may be as provocative when disclosed by words as when witnessed personally”
71 citation events (27 in the last 25 years) across 5 distinct courts.
Strongest positive: Commonwealth v. Benson (mass, 2009-01-16)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 34 distinct citers.
discussed Cited as authority (verbatim quote) Commonwealth v. Benson
Mass. · 2009 · quote attribution · 1 verbatim quote · confidence high
without evidence of a threat of 'immediate and intense offense' . . . instructions on manslaughter would not be appropriate
discussed Cited as authority (verbatim quote) Commonwealth v. Yates
Mass. App. Ct. · 2004 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation
discussed Cited as authority (verbatim quote) Commonwealth v. Seabrooks
Mass. · 1997 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reasonable man can be expected to control the feelings aroused by an insult or an argument, but certain incidents may be as provocative when disclosed by words as when witnessed personally
discussed Cited as authority (rule) Commonwealth v. Christopher S. Fratantonio
Mass. · 2025 · confidence medium
This "very limited exception" applies only "where the statements constitute a 'peculiarly immediate and intense offense to [one's] sensitivities.'" Groome, supra at 221 , quoting Benjamin, supra. Applying these principles in the context of marital infidelity, under the law applicable at the time of the defendant's trial, a defendant could pursue this defense based on evidence of a "sudden discovery of present spousal infidelity," Commonwealth v. Andrade, 422 Mass. 236, 237-238 (1996), citing Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976), including discovery by means of a sudden oral …
discussed Cited as authority (rule) Commonwealth v. Ronchi (2×)
Mass. · 2023 · confidence medium
If the information conveyed is of the nature to cause a reasonable person to lose his self-control and did actually cause the defendant to do so, then a statement is sufficient." Groome, 435 Mass. at 220-221 , quoting Model Jury Instructions on Homicide 28-29 (1999). 15 An even more narrow exception is applicable where the words constitute a "peculiarly immediate and intense offense to [one's] sensitivities." Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976).
cited Cited as authority (rule) Commonwealth v. Mercado
Mass. · 2008 · confidence medium
See Commonwealth v. Anderson, 396 Mass. 306, 314 (1985); Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976).
cited Cited as authority (rule) Commonwealth v. Fortini
Mass. App. Ct. · 2007 · confidence medium
Commonwealth v. Amaral, 389 Mass. 184, 189 (1983), quoting from Commonwealth v. Bermudez, 370 Mass. 438, 442 (1976).
discussed Cited as authority (rule) Commonwealth v. Acevedo
Mass. · 2006 · confidence medium
A jury could conclude that a reasonable person in the defendant’s position would have felt an “immediate and intense” threat, and lashed out in fear as a result. 15 Commonwealth v. Amaral, 389 Mass. 184, 189 (1983), citing Commonwealth v. Bermudez, 370 Mass. 438, 442 (1976).
examined Cited as authority (rule) Knight v. State (4×) also: Cited "see, e.g."
Ala. Crim. App. · 2005 · confidence medium
"However, in Commonwealth v. Bermudez, 370 Mass. 438 , 348 N.E.2d 802, 805 (1976), the Supreme Judicial Court of Massachusetts was confronted with a situation similar to the case at bar.
discussed Cited as authority (rule) Commonwealth v. Ruiz
Mass. · 2004 · confidence medium
If the information conveyed is of the nature to cause a reasonable person to lose his self-control and did actually cause the defendant to do so, then a statement is sufficient.” The defendant claims that Negron’s statement to him that Carmen was his “bitch” confirmed Carmen’s past infidelity and “confronted [the defendant] with the prospect of Carmen’s continued infidelity, instead of promised reconciliation.” The words used by Negron were mere insults, insufficient to provide a reasonable provocation, see Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976), and had not relaye…
discussed Cited as authority (rule) Commonwealth v. Groome
Mass. · 2001 · confidence medium
Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976), quoting Commonwealth v. Vanderpool, supra at 746 . “[Vjerbal insults and arguments, even if obscene or hostile, cannot constitute sufficient provocation, for a reasonable person ‘can be expected to control the feelings aroused’ thereby.” Commonwealth v. Estremera, 383 Mass. 382, 392 (1981), quoting Commonwealth v. Bermudez, supra at 440-441 .
discussed Cited as authority (rule) Commonwealth v. Benjamin
Mass. · 2000 · confidence medium
See, e.g., Commonwealth v. Estremera, 383 Mass. 382, 392 (1981); Commonwealth v. Schnopps, 383 Mass. 178, 181 (1981), S.C., 390 Mass. 722 (1984); Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976).
discussed Cited as authority (rule) Commonwealth v. LeClair (2×) also: Cited "see"
Mass. · 1999 · confidence medium
The law is clear that mere insulting words and threatening gestures alone with nothing else are not adequate provocation to reduce a killing from murder to manslaughter.” The defendant describes this instruction as “incomplete.” The defendant requested an instruction tracking the language contained in Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976), 2 specifically: “The existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation.
cited Cited as authority (rule) Commonwealth v. Amirault
Mass. · 1997 · confidence medium
See Commonwealth v. Cook, 371 Mass. 832, 833 (1977); Commonwealth v. Bermudez, 370 Mass. 438, 443 (1976).
discussed Cited as authority (rule) Commonwealth v. Andrade
Mass. · 1996 · confidence medium
A killing committed subsequent to the sudden discovery of present spousal infidelity, see Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976), before a reasonable person would be expected to regain emotional control and before the defendant has regained emotional control, could constitute voluntary manslaughter.
discussed Cited as authority (rule) Commonwealth v. Garabedian (2×)
Mass. · 1987 · confidence medium
See Commonwealth v. Burke, 376 Mass. 539, 543 (1978); Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976); Commonwealth v. Leate, 352 Mass. 452, 458 (1967); Commonwealth v. Hartford, 346 Mass. 482, 491 (1963).
cited Cited as authority (rule) Commonwealth v. Anderson
Mass. · 1986 · confidence medium
Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976).
discussed Cited as authority (rule) Commonwealth v. Correia
Mass. App. Ct. · 1984 · confidence medium
See Commonwealth v. Soaris, 275 Mass. 291, 295, 299 (1931) (where defendant’s fiancée publicly taunted him while she danced with another man, and thereafter continued to ridicule him privately, whereupon the defendant shot her, it was “plain the evidence did not warrant a finding of manslaughter”); Commonwealth v. Bermudez, 370 Mass. at 439-440 (where defendant killed his estranged wife after she had used an obscenity, told defendant she had another man, and told him to get out, “the evidence would not warrant a finding that sufficient provocation existed” to reduce the crime to man…
cited Cited as authority (rule) Commonwealth v. Amaral
Mass. · 1983 · confidence medium
Without evidence of a threat of an “immediate and intense offense,” Commonwealth v. Bermudez, 370 Mass. 438, 442 (1976), instructions on manslaughter would not be appropriate.
discussed Cited as authority (rule) Commonwealth v. Brown (2×) also: Cited "see, e.g."
Mass. · 1982 · confidence medium
In Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981), where the evidence warranted a finding that the victim suddenly admitted adultery to her spouse, he was entitled to a manslaughter instruction because “[t]he existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation.” Id. at 181 , quoting from Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976).
discussed Cited as authority (rule) Commonwealth v. Schnopps
Mass. · 1981 · confidence medium
Schnopps argues that “[t]he existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation,” Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976), and that a sudden admission of adultery is equivalent to a discovery of the act itself, and is sufficient evidence of provocation, id. at 441 .
cited Cited as authority (rule) Commonwealth v. Williams
Mass. App. Ct. · 1979 · confidence medium
Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976).
discussed Cited as authority (rule) Commonwealth v. Burke
Mass. · 1978 · confidence medium
She responded with words of rejection and swore at him. 1 He then shot her fatally and, in succession, shot her son and the three people who had come home with her. 2 In Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976), we acknowledged that sufficient provocation might be found in the disclosure of a fact by an oral statement, rather than from personal observations, and we left "open the possibility that, in an appropriate case, testing the defendant’s response on an objective standard, sufficient provocation may be found in information conveyed to a defendant by words alone.” In th…
cited Cited "see" Commonwealth v. McGuirk
Mass. · 1978 · signal: see · confidence high
See Commonwealth v. Bermudez, 370 Mass. 438 (1976).
cited Cited "see" Commonwealth v. Bowman
Mass. · 1977 · signal: see · confidence high
See Commonwealth v. Bermudez, 370 Mass. 438, 443 (1976). 2.
cited Cited "see" Commonwealth v. Greene
Mass. · 1977 · signal: see · confidence high
See Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976).
discussed Cited "see, e.g." Commonwealth v. Bockman
Mass. · 2004 · signal: compare · confidence medium
Compare Commonwealth v. Bermudez, 370 Mass. 438, 441 (1976), and Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975) (insulting and offensive words alone cannot provide sufficient basis for reasonable provocation) with Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981) (evidence of sudden admission of adultery equivalent to discovery of act itself, and sufficient evidence of provocation to require manslaughter instruction). 5.
cited Cited "see, e.g." Rogers v. State
Ala. Crim. App. · 2001 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979).' " Biggs v. State , 441 So.2d 989 , 992 (Ala.Crim.App. 1983)." Williams , 675 So.2d at 541 .
cited Cited "see, e.g." Miller v. State
Ala. Crim. App. · 1999 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979).’ “Biggs v. State, 441 So.2d 989, 992 (Ala.Crim.App.1983).” Williams, 675 So.2d at 541 .
cited Cited "see, e.g." Williams v. State
Ala. Crim. App. · 1996 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979)." Biggs v. State , 441 So.2d 989 , 992 (Ala.Crim.App. 1983).
cited Cited "see, e.g." Hafford v. State
Ala. Crim. App. · 1995 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979).” Biggs v. State, 441 So.2d 989, 992 (Ala.Crim.App.1983).
examined Cited "see, e.g." Purser v. State (3×)
Ala. Crim. App. · 1991 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979). ". . . . " 'Past adultery lacks the peculiarly immediate and intense offense to a spouse's sensitivities which has led courts to recognize present adultery as adequate provocation, and many courts have refused to recognize discovery of past adultery as sufficient provocation.' " 441 So.2d at 992 , citing Commonwealth v. Bermudez , 370 Mass. 438 , 348 N.E.2d 802 , 805 (1976).
cited Cited "see, e.g." Shultz v. State
Ala. Crim. App. · 1985 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979)." Biggs v. State , 441 So.2d 989 , 992 (Ala.Crim.App.), cert. denied, 441 So.2d 989 (Ala. 1983).
cited Cited "see, e.g." Biggs v. State
Ala. Crim. App. · 1983 · signal: see also · confidence low
See also Annot., 93 A.L.R.3d 920 (1979).
Commonwealth vs. Francisco Bermudez
Massachusetts Supreme Judicial Court.
Jun 10, 1976.
348 N.E.2d 802
Richard S. Goldstein for the defendant., James P. Donohue, Assistant District Attorney, for the Commonwealth.
Hennessey, Reardon, Quirico, Braucher, Wilkins.
Cited by 40 opinions  |  Published
Wilkins, J.

The defendant was convicted of murder in the second degree for the killing of his wife. He challenges the judge’s refusal to charge the jury on manslaughter and the admission of certain inculpatory statements. He also asks us to exercise our authority under G. L. . c. 278, § 33E, to order the reduction of his degree of guilt to manslaughter. There was no error of law, and we see no occasion to exercise our power under § 33E in favor of the defendant.

1. The defendant argues that voluntary manslaughter was a permissible verdict on the evidence and that the judge should have charged the jury to that effect.

The defendant, who did not testify during the trial, urges that the facts disclosed in his admissions to the police on the day of the shooting would have warranted the jury in finding sufficient provocation to support the lesser charge of voluntary manslaughter. The defendant told the police that he had been separated from his wife for approximately three weeks; he went to see her; while there he went upstairs to see their baby; when he came downstairs, he told his wife that the baby needed his diaper changed; and, using an obscenity, she told him, “I don’t need you around here, I have got another man.” He asked her again to go upstairs to see the baby. Once more using[*440] an obscenity, she told him to get out. He pulled out a gun and shot her.

Apparently, the victim did not state who the other man was. His identity may have been revealed in the course of an argument heard by two witnesses. The evidence would have warranted an inference that one of these witnesses was the other man and that he had asked the defendant to go to the victim’s home to prove to the defendant that he (the witness) was living with the defendant’s wife.

Voluntary manslaughter was not a permissible verdict because the evidence would not warrant a finding that sufficient provocation existed. The hostile and obscene character of the victim’s statements clearly was not sufficient provocation. The well established rule in this Commonwealth is that “ [i] nsults or quarreling alone cannot provide a reasonable provocation.” Commonwealth v. Zukoski, ante, 23, 28 (1976). Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). Commonwealth v. Hartford, 346 Mass. 482, 491 (1963). [1] The defendant argues, however, that the wife’s intimation that she had committed adultery informed the defendant of an occurrence which, in all the circumstances, constituted sufficient provocation to support a manslaughter verdict.

The existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation. Although recently we made the broad statement that “words alone do not constitute adequate provocation” (Commonwealth v. Vanderpool, supra at 746), this rule has generally been applied in cases where any provocation arose exclusively from the statements themselves rather than from the information conveyed in those statements. Commonwealth v. Vanderpool, supra (victim called defendant[*441] a liar). Commonwealth v. Hartford, 346 Mass. 482, 490 (1963) (argument with victim) . [2] Some other jurisdictions, which do not recognize offensive statements as constituting sufficient provocation to support a verdict of manslaughter, do recognize that information conveyed orally may be sufficient provocation. People v. Rice, 351 Ill. 604, 609 (1933). People v. Curwick, 33 Ill. App. 3d 757, 759 (1975). People v. Ahlberg, 13 Ill. App. 3d 1038, 1041-1042 (1973) (wife declared that she had found another man). People v. Poole, 159 Mich. 350, 353 (1909) (confession of adultery). Haley v. State, 123 Miss. 87 (1920) (same). State v. Grugin, 147 Mo. 39, 48-62 (1898) (admission to rape of defendant’s daughter). Commonwealth v. Berry, 461 Pa. 233, 238 (1975). State v. Martin, 216 S.C. 129, 140 (1949). State v. Flory, 40 Wyo. 184, 204-205 (1929). See R. Perkins, Criminal Law 62-63 (2d ed. 1969); Model Penal Code § 210.3 (1) (b) (Proposed Official Draft 1962), and the discussion in § 201.3 (5) Comment at 46-47 (Tent. Draft No. 9, 1959) ; [3] Annot., 10 A.L.R. 470 (1921); Campbell v. State, 204 Ga. 399, 403 (1948). A reasonable man can be expected to control the feelings aroused by an insult or an argument, but certain incidents may be as provocative when disclosed by words as when witnessed personally. Therefore, we leave open the possibility that, in an appropriate case, testing the defendant’s response on an objective standard, sufficient provocation[*442] may be found in information conveyed to a defendant by words alone.

Nevertheless, this is not such a case. Past adultery lacks the peculiarly immediate and intense offense to a spouse’s sensitivities which has led courts to recognize present adultery as adequate provocation, and many courts have refused to recognize discovery of past adultery as sufficient provocation. Palmore v. State, 283 Ala. 501, 508 (1969). Stewart v. State, 234 Ga. 3 (1975). Brown v. State, 228 Ga. 215, 218 (1971). People v. Pecora, 107 Ill. App. 2d 283, 296 (1969), cert. denied, 397 U.S. 1028 (1970) . People v. Wax, 75 Ill. App. 2d 163, 182 (1966), cert. denied, 387 U.S. 930 (1967). State v. Ward, 286 N.C. 304, 313 (1974) (no marriage). Commonwealth v. Collins, 440 Pa. 368, 374 (1970). See Palmore v. State, 253 Ala. 183, 185 (1949); People v. Arnold, 17 Ill. App. 3d 1043, 1047 (1974); Warren v. State, 243 Ind. 508, 513-514 (1963). Cf. Maher v. People, 10 Mich. 212, 224-225 (1862); Denham v. State, 218 Miss. 423, 429-430 (1953); Holmes v. Director of Pub. Prosecutions, [1946] A.C. 588, 599-601; 4 W. Blackstone, Commentaries * 191-192. [4] In the present case, no reference was made to a specific act of adultery, and clearly any adultery occurred at a time remote from the shooting. Because sufficient provocation could not have been found on this record, fio manslaughter instruction was necessary.

2. The defendant argues next that his motion to suppress certain statements made to the police should have been allowed. The judge made detailed findings concerning the circumstances in which the defendant made certain admissions to the police. These findings, which are amply supported by the evidence, indicate that the defendant was fully informed of his constitutional rights and of his right to use a telephone and that he made a knowing and intelligent waiver of those rights. It appears that the de[*443] fendant said, on more than one occasion, that he understood his rights. There was no error in the denial of the motion to suppress.

3. Finally, the defendant urges us to exercise our power and duty under G. L. c. 278, § 33E, to reduce the verdict to manslaughter. Although this case involves a tragic circumstance, an apparently isolated event in the life of one who had no previous criminal record and who served with distinction in the Korean war, after a review of the entire record we see no justification for reducing the degree of guilt to manslaughter or otherwise exercising our authority under § 33E.

Judgment affirmed.

1

This is the prevailing view elsewhere. See, e.g., People v. Thompson, 11 Ill. App. 3d 752, 757-758 (1973); Lang v. State, 6 Md. App. 128, 132, cert. denied, 254 Md. 719, cert. denied, 396 U.S. 971 (1969); State v. Fulford, 290 Minn. 236, 241 (1971); State v. Mosley, 415 S.W.2d 796, 799 (Mo. 1967). State v. Watson, 287 N.C. 147, 153-154 (1975); Commonwealth v. Myers, 419 Pa. 448, 451 n.6 (1965). But see People v. Valentine, 28 Cal. 2d 121, 143-144 (1946).

2

In Commonwealth v. Leate, 352 Mass. 452, 458 (1967), a statement conveying information that the victim had raped the defendant’s girl friend was said to be insufficient provocation, particularly since there was no sudden transport of passion on the defendant’s part.

3

Under § 210.3 (1) (b) of the Model Penal Code manslaughter would include any “homicide which would otherwise be murder ... committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.” (Proposed Official Draft 1962). One reason given for this broad formulation was that “the formulation sweeps away the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough. Given evidence of extreme mental or emotional disturbance, the question whether it is based on ‘reasonable explanation or excuse’ may be confronted, as we think it should be, in the light of all the circumstances in the case.” Comment at 46-47 (Tent. Draft No. 9,1959).

4

But see Campbell v. State, 204 Ga. 399 (1948); Scroggs v. State, 94 Ga. App. 28, 30 (1956); Haley v. State, 123 Miss. 87 (1920); State v. Martin, 216 S.C. 129, 140 (1949).